UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) MOHAMED ABDELKARIM, et al., ) ) Plaintiffs, ) v. ) ) )Civ. Action No. 05-1783 (EGS) ) KENNETH Y. TOMLINSON, ) Chairman, ) Broadcasting Board of Governors ) ) Defendant. ) ___________________________________)

MEMORANDUM OPINION

This case arises from a employment dispute by former

employees of Voice of America (“VOA”) who were not hired by Radio

SAWA after a reorganization of VOA. Plaintiffs allege

discrimination based on national origin, religion, and age.

Defendant argues that the plaintiffs did not exhaust

administrative remedies and that their claims fail under

McDonnell Douglass because while they meet the prima facie test,

they cannot show pretext. Upon consideration of the motion,

responses and replies thereto, applicable law, and the entire

record, the Court finds that this case is fraught with genuine

issues of material facts in dispute. Accordingly, defendant’s

Motion for Summary Judgment is DENIED.

I. BACKGROUND Plaintiffs were employees of VOA before it ended its Arabic

Service and switched to Radio SAWA, also an Arabic language radio

station supported by the U.S. Government. Plaintiffs include:

Mohamed Abdelkarim, a U.S. citizen of Egyptian background, who is

a practicing Sunni Muslim; Zainab Abdulrahman, a U.S. citizen of

Egyptian background, who is a practicing Sunni Muslim; Hayat

Alkhateeb, a U.S. citizen of Palestinian background, who lived in

Syria for many years and is a practicing Sunni Muslim; Amina El-

Bishlawy, a U.S. citizen of Egyptian Background, who is a

practicing Sunni Muslim; and Faiza Elmasry, a U.S. citizen of

Egyptian background, who is a practicing Sunni Muslim.

In early 2001, the Broadcasting Board of Governors decided

to replace the VOA Arabic Service with the Middle East Radio

Network (“MERN”), which eventually became known as Radio SAWA.

According to James Hooper, Radio SAWA’s staff director, “Radio

SAWA was set up because of the overwhelming need [of] the United

States government to reach people in the Middle East.” VOA

employees were allowed to compete for jobs with Radio SAWA

through an agreement that was worked out with their union. MERN

was allotted thirty-two positions; there were thirty-four

employees in the VOA Arabic Service. VOA posted vacancy

announcements for multiple positions at the GS-12 and GS-13 grade

levels. Pursuant to a memorandum of understanding worked out

between VOA and the union, VOA employees who were only seeking

2 lateral reassignment to Radio SAWA were not required to apply

under a merit promotion vacancy announcement. Only employees who

were seeking promotion were required to apply under the merit

promotion announcement.

Jack Welch, the Director of Personnel, assured VOA staff

that current employees would be considered for positions with

Radio SAWA before outside employees and lower graded employees

were considered. Welch also set out other criteria for selecting

Radio SAWA employees in this order: The panel would first

consider internal candidates at grade of position to be filled;

if no internal candidates met the requirements, internal

candidates who did not apply but who were at grade of the

position to be filled would be considered; if none of the

candidates met those requirements, the panel would look to

internal applications for promotion; if none of these

requirements were met, then external candidates would be

considered. Welch noted that external hires or contractors would

be used only if a determination was made that no current staff

member meets the requirements for the position involved. The

personnel department determined whether candidates for promotion

met basic qualification requirements based on position

description and qualification requirements supplied by MERN. The

selection process was also governed by the Hatch-Mundt Act,

, which grants hiring preferences to U.S. citizens

3 over non-citizens. Morever, according to VOA policy, “[a] non-

U.S. citizen may be appointed only after reasonable efforts to

recruit equally or better qualified U.S. citizens have been made

and have been unsuccessful.”

Susan King, the personnel specialist who assisted in the

processing of applications for the vacant positions, reviewed the

applications that were received through the merit/competitive

selection process to determine which candidates met the basic

qualifications for the positions. After candidates were ranked

by a committee of three individuals, King issued a merit

promotion certificate of eligibles to Moufac Harb, the Director

of Network News for Radio SAWA. This certificate contained the

names of the individuals with the top ten scores from the rating

panel, including plaintiffs Abdelkarim, Abdelrahman, and Elmasry.

King, however, was asked by her supervisor, Michael Conboy,

to retrieve the list and issue a list with only five eligible

candidates. The second certificate contained the names of

plaintiffs Abdulkarim and Abdelrahman. Later, Welch instructed

King to issue a third certificate that contained the names of all

seventeen candidates who applied for the available positions.

With the exception of Elmasry, who withdrew her application,

all of the plaintiffs applied for the GS-13 Supervisory

International Radio Broadcaster (“IRB”)/Shift Editor positions.

4 They were all on the certificate of eligibles, and they were

interviewed by the selection committee. None of them was

selected for positions with Radio SAWA. All of the plaintiffs

also applied for the GS-12 IRB positions. They were all included

on the certificate of eligibles, and they were interviewed by the

selection committee. None of them was selected for positions

with Radio SAWA. Harb testified in his deposition that none of

the plaintiffs were even minimally qualified to perform the jobs

for which they applied.

Plaintiffs contacted VOA’s Office of Civil Rights on

November 7, 2002, and filed formal complaints on May 13, 2003.

In January 2004, plaintiffs elected to proceed to a hearing

before an administrative judge at the Equal Employment

Opportunity Commission (“EEOC”). Discovery with the EEOC closed

on January 11, 2005; plaintiffs withdrew their hearing request on

January 12, 2005. Plaintiffs then requested a Final Agency

Decision (“FAD”), which they received. On September 8, 2005,

plaintiffs filed suit in this Court. Discovery closed in this

case on April 9, 2007. Defendant filed a Motion for Summary

Judgment on August 15, 2007, which this Court denied without

prejudice on May 28, 2008. Defendant filed a renewed Motion for

Summary Judgment on June 13, 2008 that is currently before this

Court.

5 II. DISCUSSION

A. Standard of Review

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

summary judgment should be granted only if the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C.

Cir. 2002). A fact is genuine "'if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.'"

Steele v. Schafer,

(D.C. Cir. 2008) (quoting

Anderson v. Liberty Lobby, Inc.,

(1986)).

Facts are material if they "'might affect the outcome of the suit

under the governing law.'"

(quoting Anderson,

).

The party seeking summary judgment bears the initial burden

of demonstrating an absence of genuine issues of material fact.

Celotex,

; Tao v. Freeh,

(D.C.

Cir. 1994). "When a motion for summary judgment is properly made

and supported, [however,] an opposing party may not rely merely

on allegations or denials in its own pleading; rather, its

response must . . . set out specific facts showing a genuine

issue for trial." Fed. R. Civ. P. 56(e)(2); see also Celotex,

. "'[A] mere unsubstantiated allegation . . .

6 creates no genuine issue of fact and will not withstand summary

judgment.'" Ginger v. District of Columbia,

(D.C. Cir. 2008) (quoting Harding v. Gray,

(D.C.

Cir. 1993)) (alterations in original). "Accepting . . .

conclusory allegations as true . . . would defeat the central

purpose of the summary judgment device, which is to weed out

those cases insufficiently meritorious to warrant the expense of

a jury trial." Greene v. Dalton,

, 675 (D.C. Cir.

1999).

In determining whether a genuine issue of material fact

exists, the Court must view all facts in the light most favorable

to the non-moving party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986); Keyes v. District

of Columbia,

(D.C. Cir. 2004). "'As employers

rarely maintain records directly evidencing discrimination, an

added measure of rigor or caution is appropriate in applying this

standard to motions for summary judgment in employment

discrimination cases.'" Brownfield v. Bair,

(D.D.C. 2008) (quoting Woodruff v. Peters,

(D.C. Cir. 2007)).

B. Analysis

1. Exhaustion of Administrative Remedies

Defendant argues that plaintiffs have failed to exhaust

administrative remedies because they abandoned the administrative

7 process and failed to contact an Equal Employment Opportunity

(“EEO”) counselor on their harassment claim and their

discrimination and retaliation claims regarding pay assignments

and overtime within forty-five days. In Brown v. Tomlison,

(D.D.C. 2006), this Court found that a complainant

who timely elects a hearing before an EEOC administrative judge

may withdraw from the hearing and proceed to federal court. See

. Plaintiffs in this case, however, went further

than the plaintiffs in Brown. Plaintiffs requested a FAD and

received one. They then filed suit in this Court within ninety

days of receipt of the FAD. Title VII authorizes a plaintiff to

file suit in federal court “[w]ithin 90 days of receipt of notice

of final action taken by a department, agency, or unit.” 42

U.S.C. § 2000e-16©. There is no reason for this Court to stray

from the well-reasoned decision in Brown.

Defendant also complains that the plaintiffs benefitted from

discovery before withdrawing their request for an administrative

hearing. Defendant, however, cites no case law that prevents

plaintiffs from the course of action they took. In fact, the

EEOC’s guidance makes clear that a complainant may voluntarily

withdraw a request for a hearing at any time. See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part

1614 (EEO MD-110), 7-1 (Nov. 9, 1999) (“Generally, an

Administrative Judge will conduct a hearing on the merits of a

8 complaint unless . . . the hearing request is voluntarily

withdrawn.”). Plaintiffs did exhaust their administrative

remedies, and their suit is properly before this Court.

2. Discrimination Claims

Plaintiffs allege that they were discriminated against based

on national origin, religion, and age in violation of Title VII.

Employee allegations of discrimination trigger the familiar

McDonnell Douglass burden-shifting framework in federal courts.

See Stella v. Mineta,

(D.C. Cir. 2002). In the

absence of direct evidence of discrimination, the courts use this

framework to determine whether an employee-plaintiff has a

colorable claim against his or her employer. See McDonnell

Douglass v. Green,

(1973). According to the

McDonnell Douglass framework, the plaintiff has the initial

burden of establishing a prima facie case of discrimination by a

preponderance of the evidence. See id.; Stella,

.

If the plaintiff succeeds in making out a prima facie case, the

burden shifts to the employer to articulate a legitimate,

non-discriminatory reason for its actions. Stella,

(citing McDonnell Douglas,

). If the employer

articulates a non-discriminatory reason for the adverse

employment action, the burden then shifts back to the plaintiff,

who must demonstrate that the employer's stated reason was merely

pretext and that the true reason was discriminatory.

(citing

9 McDonnell Douglas,

). If the plaintiff cannot

demonstrate pretext, the employee's claims necessarily fail.

To establish a prima facie case of a discriminatory failure

to promote or hire, plaintiffs must show: (1) that they belong to

a protected group; (2) that they applied and were qualified for a

job for which the employer was seeking applicants; (3) that

despite their qualifications, they were rejected; and (4) that

individuals were selected to fill the positions. See Cones v.

Shalala,

(D.C. Cir 2000) (citing McDonnell

Douglas,

).

Defendant acknowledges that plaintiffs have established a

the prima facie case. The burden is now upon the defendant to

articulate a non-discriminatory reason for its failure to promote

or hire. While defendant argues that plaintiffs were not

promoted or hired because plaintiffs failed to demonstrate that

they had a “skill set” or the background for the new positions,

the Court cannot make that determination at this stage because

there are numerous material facts that are in dispute. For

example, there is a dispute about why three different lists of

qualified candidates were produced. Plaintiffs argue that one of

the selectees complained to Harb that she was not on the original

list and that Harb intervened on her behalf. Harb denies this.

There is also some discrepancy about who made the final decision

about who was hired. Harb says that the decision was made by the

10 committee. There is evidence in the record that indicates that

Harb made the decision and the other committee members deferred

to him because he spoke Arabic. There also seems to be a dispute

about why plaintiffs were not hired. While defendant argues that

plaintiffs were not qualified, Harb testified that he has no

memory of the interviews with plaintiffs. Harb also goes back

and forth during his testimony about whether or not he knew the

ratings and scores of the candidates. After claiming that

plaintiffs were not qualified for the jobs for which they

applied, Radio SAWA continued to rely heavily on them for

assignments. Finally, plaintiffs were required to train many of

the people who were hired for the jobs for which plaintiffs

applied.

These disputed facts are not exhaustive but are merely

examples culled from the pleadings. These issues are genuine,

material, and disputed. These claims are not ripe for summary

judgment.

3. Hostile Work Environment Claim

To establish a prima face case for a hostile work

environment claim, a plaintiff must show that: “(1) he is a

member of a protected class; (2) he was subjected to unwelcome

harassment; (3) the harassment occurred because of the

plaintiff's protected status; (4) the harassment affected a term,

condition, or privilege of employment; and (5) the employer knew

11 or should have known about the harassment, but nonetheless failed

to take steps to prevent it.” Baloch v. Norton, 355 F. Supp. 2d.

246, 259 (D.D.C. 20005). Courts must look at the totality of the

circumstances when making a determination of whether a hostile

work environment exists. Faragher v. City of Boca Raton,

(1998). This determination includes examining “the

‘frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.’”

at 787-88 (quoting Harris v.

Forklift Sys., Inc.,

(1993)).

Defendant acknowledges that plaintiffs are members of a

protected class. Viewing the facts in the light most favorable

to the non-moving party, it is clear that plaintiffs’ claims of a

hostile work environment are not ripe for summary judgment.

Plaintiffs allege that Harb said that he would “clean the Arabic

Branch of Egyptians” and that there were too many Egyptians in

the Arabic Service. He also changed the VOA style to give

preference to Lebanese dialects, phrasing, colloquialisms, and

pronunciations. Plaintiffs allege that Harb routinely made

derisive comments about Radio Cairo, where many of the plaintiffs

had previously worked. They allege that he repeatedly denigrated

the Egyptian dialect and ridiculed Egyptian cultural icons on a

daily basis. Plaintiffs do not complain of isolated incidents;

12 they complain of an on-going pattern of hostility towards their

national origin, culture, and background. They also complain of

comments that Harb frequently made about their age.

“When the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and

create an abusive working environment, Title VII is violated.”

Harris,

(internal citations and quotation marks

omitted). Based on plaintiffs’ allegations, a jury could find

that the alleged “discriminatory conduct was so severe or

pervasive that it created a work environment abusive to employees

because of their [age], religion, or national origin [and

therefore] offends Title VII's broad rule of workplace equality.”

. Plaintiffs have established a prima facie case, and a

jury could find that defendant violated Title VII. Defendant’s

motion for summary judgment on the hostile work environment

claims are similarly denied.

III. CONCLUSION

For the foregoing reasons, defendant’s Motion for Summary

Judgment is DENIED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

13 Signed: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE March 20, 2009

14